Benefit News

California Enacts New Parent Leave Act

November 01, 2017

On October 12, 2017, California Governor Jerry Brown signed legislation (S.B.63) into law that will extend the state's parental-bonding leave requirements, which currently apply only to employers with 50 or more employees, generally to all California employers that have between 20 and 49 employees. Known as the New Parent Leave Act (Act), the new law becomes effective January 1, 2018.

Employee Eligibility Requirements

An employee will be eligible to take leave if he or she:

Has more than 12 months of service for the employer;

Has at least 1,250 hours of service with the employer during the previous 12 months; and

Works at a worksite in which the employer has at least 20 employees within 75 miles.

In addition, an employee that wishes to take leave under the Act must request and take the leave within the first year after:

The birth of the employee's child;

The employee's adoption of a child; or

The placement of a child for foster care with the employee.

An employer may require at least 30 days' advance notice when the need for leave is foreseeable due to an expected birth or placement of a child for adoption or foster care. If 30 days' advance notice is not possible, an employee may be required to provide notice as soon as practicable. Employers must respond to an employee's leave request no later than five business days after receiving it.

Leave Requirements

Before the start of an employee's leave under the Act, the employer must provide the employee with a guarantee of employment in the same or a comparable position following the leave. An employer that fails to provide this guarantee may be deemed to have unlawfully refused the employee's leave request.

Employers are not required to pay an employee while he or she is on leave under the Act. However, employees may use, and employers may require employees to use, any accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during a period of parental leave.

Like the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA), the Act requires employers to maintain and pay for continued group health coverage for an employee while he or she is on parental leave. The health coverage must be continued at the same level and under the same conditions as those provided prior to a leave period. An employer may recover the costs of maintaining an employee's health coverage if the employee fails to return to work following a parental leave period for any reason other than a serious health condition or circumstances beyond the employee's control.

If both parents of a new child are employed by the same employer, the employer is not required to grant more than a total of 12 weeks of leave under the Act. However, an employer may allow both employees to take up to 12 weeks of leave at the same time.

Enforcement

The Act prohibits employers from interfering with, restraining or denying an employee's rights under the law, as well as from discharging, fining, suspending, expelling, refusing to hire or discriminating against an employee for exercising his or her rights under the law, or for providing information or testimony in any inquiry or proceeding related to the rights guaranteed under the law.

If an employer violates the Act, an affected employee may file a complaint with the California Department of Fair Employment and Housing (DFEH), which may order the employer to:

Hire, reinstate or upgrade the employee, with or without back pay;

Refrain from committing any further violations; and

Pay a fine of up to $25,000 for any discrimination.

The DFEH may also file or grant an employee the right to file a civil lawsuit against an employer for violations of the Act. Until January 1, 2020, however, employers will have the right to request that all parties participate in mediation before an employee is allowed to file a lawsuit. An employer that receives a right-to-sue notice from the DFEH will have 60 days to submit a mediation request.

Interaction With Existing State Laws

Currently, the CFRA and the FMLA require California employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for employees to bond with a new child born to, adopted by or placed for foster care with them. The will now require smaller employers in California to provide the same leave.

Unlike the CFRA and the FMLA, however, the Act will not require employers to provide leave for an employee's own serious health condition or for the serious health condition of a family member.

Under another existing state law, California employers with five or more employees must grant up to four months of unpaid, job-protected leave to female employees who are disabled by pregnancy, childbirth or a related medical condition. Because of this, an employee cannot take leave under the CFRA for these conditions. Likewise, an employee will not be allowed to take leave for those conditions under the Act.

However, an employee who works for an employer with 50 or more employees may take CFRA leave to bond with a new child (or to deal with a serious health condition) once her pregnancy disability leave ends. Under the Act, employees who work for smaller employers will also be allowed to take parental leave after a period of pregnancy- or childbirth-related disability leave.

Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.

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